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Even hard-boiled detectives can be shocked by somebody flashing them from just a couple feet away, court rules

The Massachusetts Appeals Court today upheld a man's conviction for exposing himself to an undercover cop, ruling that wearing a badge doesn't shield police officers from the same feelings of shock anyone else might experience when confronted close up with something unwelcome, such as a stranger's penis on a near-deserted street corner.

Johnathan Pasquarelli was convicted of open and gross lewdness and lascivious behavior in 2018 following his arrest by Salem police officers trying to catch a guy who kept flashing women in downtown Salem. In a sting operation one night, Det. Charlene Sano posed as a pedestrian, walking up and down a particular street until one guy drove past her some 25 times, then got out and walked by her a couple of times. And then, according to the court's summary of the case, when Sarno got on her phone to talk to her partner, who was parked nearby and keeping his own eye on her:

[T]he driver approached Sano and said, "[E]xcuse me." Then lifting his sweatshirt and exposing his genitals, he said, "[C]an you put this in your mouth?" Sano screamed to the surveillance officer, "[H]e just did it, he just did it, he just exposed himself." At trial, the surveillance officer testified that Sano's tone of voice was "fearful, shocked," and "surprised."

At issue in Pasquarelli's appeal is a requirement in Massachusetts case law that requires prosecutors to prove a witness was "shocked" or "alarmed" by the activity in question; it's not simply enough to prove that a person took down or lifted up clothing hiding naughty bits. Pasquarelli's lawyer argued the prosecution could not possibly prove that in this case because police officers, as hardened as the criminals they pursue, become immune to such feelings.

Wrong-o, the appeals court ruled.

An officer is not immune -- either by nature of her position or by nature of the investigation she is conducting --to feelings of fright. See State v. Wood,180 Ariz. 53, 66 (1994), cert. denied, 515 U.S. 1147 and 515 U.S. 1180(1995)("Police officers, of course, are not immune from the fear that anyone would reasonably feel. . ."). We would not tell an officer responding to a report of an armed suspect that feelings of fear on being confronted with a gun are unreasonable. Nor would we dismiss the shock an officer may experience on arriving at a bloody murder scene. We likewise decline to conclude that as a matter of law an officer's shock or alarm when accosted by a suspect engaging in lewd behavior, even if anticipated, are objectively unreasonable. ...

Specifically, the question is whether Sano's shock "was an objectively reasonable reaction in the circumstances of the conduct." ... Here, the defendant drove his vehicle past Sano over twenty-five times as he repeatedly circled the neighborhood; it was after 9 P.M. and there were only a few people around; the defendant walked past Sano a couple of times and poked his head around a building a couple of times; and he then approached Sano, expressly called for her attention, and exposed his genitals. We think this evidence was sufficient to establish that Sano's shock "was an objectively reasonable reaction," ... and thus sufficient to satisfy the [shock and alarm requirement].

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Comments

If it's only criminal if there is "shock" or "alarm", the law seems to be saying, "There are times when genitals will be flashed and it's OK as long as the recipient likes it." It also doesn't allow for the reasonable reply to such a display such as calmly stating, "Get that shit out of here!"

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I agree that it seems outdated, and based expectations of a pearl-clutching response, whereas a lot of people today are going to be more sex-positive and won't be "horrified," but will calmly assert that they don't want to see that shit.

The complicating factor though is that if we were to, say, rewrite it to refer to all instances when consent isn't obtained, then it could extend to people peeing in public or people being disheveled and having a zipper hanging open. Obviously this is kind of a we-know-it-when-we-see-it situation, but it's hard to put into words. It requires some sort of intent to be lewd, and intent is hard to assess (but not impossible, and does happen with other laws).

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They already do use this law for peeing in public, because there is no law specifically banning voiding where prohibited.

It’s really stupid. Of course the cop is going to pretend to be offended if they want to charge someone with this.

I think peeing in public without an intent to horrify someone should be punishable by cleaning it up.

I'll give you some of the weird details

Indecent exposure: Person intentionally exposes genitals or breasts (not butt or pubes) and one person was offended by the exposure. This can be done in private or public (misdemeanor 6 month max)

Lewd and Lascivious Conduct: Person or persons commit a sexual act involving genitals, breasts (or butt), for the purpose of sexually gratifying the suspect(s) or offending other people, and the act was committed in a public place (no one needs to be shocked or offended here) Also a misdemeanor.

Open and Gross Lewdness: Person intentionally exposes genitals, butt, breasts to one or more persons, it is done openly where the person intends to do it or recklessly does it, the person does it in a way that it would produce alarm or shock and a person was actually alarmed or shocked by the exposure (This is a 3 year felony)

As you can guess many of these overlap depending on whether or not the person meant for other people to see it, or it it was reckless enough where someone could have seen the act and the person should have known that.

Kudos to the officer for her dedication and good work.
Rapists sometimes start out as flashers. Maybe this one has been thwarted.

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Rapists sometimes start out as flashers.

That sounds like B.S.

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Neither study supports the claim. The first one analyzes a snapshot of offenders. It seems to conclude that flashers are less educated, nonviolent flashers are likely to reoffend nonviolently, and that violent flashers are likely to continue to reoffend violently. The second one doesn't cite any data.

I doubt there's any data proving a slippery slope where nonviolent trenchcoat flashers graduate over time into rapists. They're different crimes. Of course there will be overlap, but I can't imagine any line that makes sense for connecting those dots.

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... to deny what these and other studies have shown.
I don’t want to speculate why.

is one of the most fucked up things I've ever read here. Are you calling someone a rapist because he doubts the scientific rigor of Psychology Today?

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The size was shocking.

First time I was ever flashed was as a 5th grader, female if it matters. It was during gym class when we girls would jog as a group down a side street. Because of the flasher the girls' gym class was banned from running outside and was sequestered in the gymnasium, whereas the boys were still free to run outside in the fresh air. Fuck you assholes.

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...it's not open and gross lewdness and lascivious behavior.

OK, got it.

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